IP: Re: Time to bury proposed software law (: [risks] Risks Digest 21.41

[David Farber <dave () farber net>]

> Date: Thu, 24 May 2001 16:39:58 +0100
> To: farber () cis upenn edu
> From: Jean Camp <jean_camp () harvard edu>
>
>
> At 10:50 AM 5/24/01 -0400, you wrote:
>
> > > Date: Thu, 24 May 2001 10:33:49 -0400
> > > From: "R. Polk Wagner" <polk () law upenn edu>
> > > To: <farber () cis upenn edu>
> > >
> > >
> > > I teach UCITA to law students, and invariably many (if not most) in the
> > > class seem to conclude that the harsh criticisms of UCITA are unfair.  To be
> > > sure, there are a number of problems with UCITA, including its acceptance of
> > > software sales as a license, and its relationship with federal laws.  And
> > > those who hoped to use a law on digital contracts as a vehicle for extensive
> > > commercial regulation are going to be profoundly disappointed.  But a close
> > > look at the law reveals that the reality is something different from the
> > > rhetoric.
> Shocking really that the students you teach end up agreeing with you. 
> Never before observed in the classroom. <Sacasm off> A good professor 
> allows students to leave the classroom disagreeing because a good teacher 
> illustrates both sides. You are supposed to be teaching them _how_ to 
> think not _what_ to think.
>
> "Freedom to contract"  was widely investigated in other industries. It was 
> in fact the "freedom to contract" the reliability and strength of steam 
> vessels which lead to the first technology policy, consumer protection, 
> unions, safety laws, labeling requirements, and minimal standards for 
> food. What UCITA does is remove the option of governance from anywhere 
> _except_ the market. UCITA is also carefully crafted to harm free and open 
> software. The IEEE USA and USACM, not exactly bastions of 
> radicalism,  dozens of Attorney Generals and all consumer rights 
> organizations oppose it. The USA IEEE has been quite conservative in the 
> past, objecting only to the prohibition of research in the DMCA and coming 
> out for a stronger patent office on many occasions. Compare this to the 
> response to UETA which has been subject to few objections, and was 
> developed through a legitimate process. UCITA, for example,  allows the 
> negation of all consumer traditions of protection, and makes it possible 
> for a company to knowingly ship bad products. The UCITA process is amazing 
> in terms of the years spent attempting to subvert cooperative legal 
> processes developed over decades.
>
> I noticed you provided pointers only to the text of UCITA so here are some 
> pointers to analysis:
> http://www.cpsr.org/program/UCITA/ucita-fact.html
> http://www.ala.org/washoff/ucita/index.html
> http://www.gnu.org/philosophy/ucita.html
> http://www.ieeeusa.org/forum/grassroots/ucita/
> http://www.badsoftware.com
>
> Really Dave, I understand balance but this kind of argument is equivalent 
> to "the earth looks flat once you just look at it". It's beneath your 
> readers. There really is no debate in the legal and policy communities 
> about the value of UCITA. I would say it is less disputed than global warming.
>
> -Jean



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